Disqualified or Absent Veniremembers

Two Problems With an Individual Veniremember

This page is about a single juror, not the whole panel. Two things can go wrong with an individual veniremember: the person may be legally unfit to serve, or the person may not be there at all. Each has its own rules and its own remedy, and both differ from a challenge to the array, which attacks the entire venire.

Unfitness comes in two grades. Some grounds are absolute disqualifications: the person simply cannot serve, and no one — not even both parties by agreement — can put that person on the jury. Other grounds are challenges for cause: the person can be removed on a timely, specific challenge, but if no one challenges, the objection is waived. Telling the two apart is the whole game, because they carry very different consequences on appeal.

Absence is the second problem. A summoned juror who fails to appear can be fined and, on request, attached and brought to court, or seated late if the person shows up before the panel is qualified. When many jurors are quietly excused by court staff, that is not an individual-juror problem at all — it is a challenge to the array, addressed on a companion page. Here the focus is the retail problem: one person who is disqualified, or one seat that is empty.

Absolute Disqualifications Under Article 35.19

Three grounds are so serious that a person subject to them cannot be seated under any circumstances. Under article 35.19, no juror may be impaneled who has been convicted of misdemeanor theft or a felony, who is under indictment or other legal accusation for misdemeanor theft or a felony, or who is insane — even if both parties consent.

These are grounds 2, 3, and 4 of the challenge-for-cause list in article 35.16, singled out for special treatment. In White v. State, the Court of Criminal Appeals confirmed that article 35.19 provides an absolute disqualification, quoting the statute’s command that no such juror shall be impaneled “though both parties may consent.” The consent clause is the key: with an ordinary challenge for cause, the parties can agree to let a marginal juror serve, but an absolutely disqualified person is barred as a matter of law, and any agreement to seat that person is a nullity.

What Counts as a Disqualifying Status

The disqualifying statuses reach further than a completed conviction. A pending case counts. A veniremember who is currently under indictment or other legal accusation for theft or a felony — including someone serving deferred-adjudication community supervision — is absolutely disqualified, because the accusation is still open. The bar is about present legal status, not just past judgments.

In Thomas v. State, the Court of Criminal Appeals held that a person under indictment or legal accusation for theft or any felony is absolutely disqualified, and it treated deferred adjudication as a pending case for that purpose. That said, not every criminal history disqualifies as a matter of constitutional law. In Perez v. State, the court held that a juror with a felony driving-while-intoxicated conviction was only statutorily disqualified, not constitutionally disqualified, because that offense is not a “high crime” under the Texas Constitution — a distinction that controls how the reversal rule applies.

The baseline qualifications also come from the Government Code. Section 62.102 lists the general qualifications for jury service — age, citizenship, county residence, voter eligibility, sound mind and good moral character, literacy, and the absence of a theft or felony conviction or pending accusation. A conviction for misdemeanor theft or a felony permanently disqualifies a person from jury service. These qualifications are supposed to be screened during the court’s questioning of the panel, but screening sometimes fails, which is where the appellate rules take over.

Absolute Disqualification Versus Challenge for Cause

Most grounds in article 35.16 are ordinary challenges for cause, not absolute bars. Bias or prejudice for or against the defendant, being a witness in the case, having served on the grand jury that indicted, or a close family relationship to a party all make a juror removable — but only if a party raises the challenge. Silence forfeits them.

The practical difference is enormous. A challenge for cause must be specific and timely; if counsel does not identify the ground and ask the court to strike, and instead uses a peremptory or lets the juror sit, the complaint is generally waived, and the juror’s service does not undo the verdict. An absolute disqualification is different in kind: it cannot be consented to, and its consequences on appeal are governed by a dedicated statute rather than ordinary preservation rules. That is why classifying the ground correctly is the first task — a mislabeled objection can forfeit a right that the law otherwise treats as non-waivable.

Both types still reward vigilance during voir dire. The court’s general questions may not surface a juror’s pending theft charge or a disqualifying relationship, so defense counsel should ask directly about convictions, pending accusations, and connections to the case. Catching a disqualification before the jury is seated is far better than litigating it after a verdict, when the burden shifts and the standard tightens.

The Article 44.46 Reversal Standard

When an absolutely disqualified juror slips onto the jury, whether the conviction can be reversed depends on timing. Article 44.46 permits reversal on that ground only if the defendant raised the disqualification before the verdict, or if the disqualification was not discovered until after the verdict and the defendant then shows significant harm from the juror’s service.

The two clauses cut very differently. In Nelson v. State, the Court of Criminal Appeals held that a defendant who told the court he had “no objection” to a disqualified juror failed to raise the disqualification and could not obtain reversal under article 44.46, even though someone else had brought the fact to light. Raising the issue is the defendant’s burden, and doing the opposite forfeits the point. For post-verdict discoveries, White v. State held that the mere presence of an absolutely disqualified juror in deliberations is not, by itself, the “significant harm” the statute demands.

This is a change from the older rule. Before article 44.46, decisions like Thomas v. State ordered a new trial whenever a disqualified juror served, without regard to a showing of harm. The statute, effective in 1993, kept automatic reversal only when the defendant raises the disqualification before the verdict, and imposed the significant-harm requirement when the problem surfaces afterward. Perez v. State upheld that scheme as constitutional where the disqualification is statutory rather than a constitutional “high crime.” The upshot is simple: find the disqualification and object before the verdict, or face a much harder road on appeal.

Absent Veniremembers and Attachment

The second problem is a missing juror. When a case is called and the parties announce ready, the names of those summoned are called under article 35.01. A juror who is absent may be fined, and either party may ask the court to attach the juror and bring the person in at once.

The statute also provides a path back for a latecomer: a summoned person who is not present may, upon appearing before the jury is qualified, be tried as to qualifications and impaneled unless challenged. But there is a firm limit — no cause shall be unreasonably delayed on account of a juror’s absence. So a party who wants a particular absent panelist reached must act promptly, request the attachment on the record, and cannot expect the trial to stall indefinitely while the juror is located.

Two cautions round out the picture. First, attaching absent jurors is a request either side may make, but it is treated as directory, so a party who wants to complain about absent jurors on appeal must have asked the court to attach them and must show resulting harm. Second, when the absences are not individual no-shows but the product of court staff excusing many jurors without the judge’s knowledge, the issue becomes a challenge to the array — the systemic remedy covered on the companion page — rather than the individual attachment procedure described here.

Where This Fits

This guide is one of four situations that arise under the Motion to Shuffle Jury / Challenge to the Array. Start with the parent motion for the overall framework, or move to a related fact pattern:

What the Case Law Says

These decisions—verified against primary sources—control how this issue is litigated. Every case still turns on its own facts.

• Nelson v. State, 129 S.W.3d 108 (Tex. Crim. App. 2004) — A defendant who says 'no objection' fails to raise a juror's absolute disqualification under article 44.46, barring reversal on that ground.
• White v. State, 225 S.W.3d 571 (Tex. Crim. App. 2007) — Article 35.19 disqualifications cannot be waived by consent, but a disqualified juror's mere presence is not per se significant harm.
• Thomas v. State, 796 S.W.2d 196 (Tex. Crim. App. 1990) — A veniremember under indictment or on deferred adjudication for theft or a felony is absolutely disqualified from jury service.
• Perez v. State, 11 S.W.3d 218 (Tex. Crim. App. 2000) — A juror with a felony DWI conviction is only statutorily, not constitutionally, disqualified, so article 44.46's harm requirement validly applies.

General summaries of published opinions for information only — not predictions about any specific case.